Payton v. Hobbs

Filing
21

ORDER ADOPTING 17 Proposed Findings and Recommendations of Magistrate Judge. Mr. Payton's 1 petition for Writ of Habeas Corpus is dismissed without prejudice. Mr. Payton's 19 motion for evidentiary hearing is denied. A certificate of appealability will not be issued. Signed by Judge Kristine G. Baker on 5/30/2013. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KEVIN PAYTON,
ADC#082480
v.
PETITIONER
5:12-cv-00032-KGB-JJV
RAY HOBBS, Director,
Arkansas Department of Correction
RESPONDENT
ORDER
The Court has reviewed the Proposed Findings and Recommendations submitted by United
States Magistrate Judge Joe J. Volpe and petitioner Kevin Payton’s objections. After carefully
considering the objections and making a de novo review of the record, the Court concludes that the
Proposed Findings and Recommendations should be, and hereby are, approved and adopted in their
entirety as this Court’s findings in all respects.
This Court concludes that no certificate of appealability will issue. Slack v. McDaniel, 529
U.S. 473, 484 (2000). As to the claims that are procedurally barred, Mr. Payton has not
demonstrated that jurists of reason would find it debatable whether his petition states a valid claim
for the denial of a constitutional right and whether this Court was correct in its procedural ruling.
Id. As to any claims that are not procedurally barred, this Court concludes Mr. Payton has not made
a substantial showing of the denial of a constitutional right. Id.
The Court acknowledges that Mr. Payton has filed a motion for an evidentiary hearing (Dkt.
No. 19). After careful review, the Court denies that motion. In his motion, Mr. Payton states that
he wishes to present new evidence, but the materials he includes to support this request are letters
of support from friends and family from 2008, a medical report regarding the victim of the
underlying offense, and portions of the trial transcript. These materials all appear to have been
associated with the trial of the underlying offense. The medical report was presented as evidence
at Mr. Payton’s trial (See Dkt. No. 19, at 45). Neither that report nor the letters of support aid Mr.
Payton’s procedurally defaulted claims or his claims regarding ineffective assistance of counsel.
Judge Volpe’s Proposed Findings and Recommendations properly addresses the claims in the
petition for habeas corpus, and the materials submitted in the motion for an evidentiary hearing do
not persuade the Court to order an evidentiary hearing or otherwise modify Judge Volpe’s Proposed
Findings and Recommendations. The motion for an evidentiary hearing is denied (Dkt. No. 19).
IT IS, THEREFORE, ORDERED that:
1.
Mr. Payton’s § 2254 Petition for Writ of Habeas Corpus is dismissed without
prejudice (Dkt. No. 1).
2.
A certificate of appealability will not be issued.
3.
Mr. Payton’s motion for an evidentiary hearing is denied (Dkt. No. 19).
SO ORDERED this 30th day of May, 2013.
____________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE
2

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